Hawai'i Fisheries Initiative - The Hawaii Institute for Public Affairs

503 Wendie Ellen Schneider, Contentious Business:
Merchants and the creation of a Westernized
judiciary in Hawai‘i,” 108 Yale L.J. 1389 (1999),
citing In re Estate of His Majesty Kamehameha IV,
2 Haw. 715, 720 (1864).
504 Peter Apo, Dennis “Bumpy” Kanahele, Cherlyn
Logan, Dr. Davianna McGregor, John M. Knox &
Associates, ed., Planning for sustainable tourism in
Hawai‘i (2004), prepared for Hawai‘i Department
of Business Economic Development & Tourism,
at http://www.Hawaii.gov/dbedt/info/visitorstats/
sustainable-tourism-project/drafts/Native-Hawaiian-
Impact-Report.pdf, p. 10.
505 Alan Friedlander, Bob Endreson, William Aila,
Linda Paul, with the assistance of DAR, Pacific
Fisheries Coalition whitepaper, The Status
of Hawai‘i’s Living Marine Resources at the
Millennium, at http://www.pacfish.org/wpapers/
fishstatus.html. See also Ka Hana Lawai‘a a me na
ko‘a o na kai‘ewalu [electronic resource] : a history
of fishing practices and marine fisheries of the
Hawaiian Islands. Compiled from Native Hawaiian
traditions, historical accounts, government
communications, Kama’aina testimony and
ethnography. Honolulu, HI : Kamehameha Schools
Land Assets Division, 2004. DU624.6 .N35 2004.
506 Organic Act of April 30, 1900, Chapter 339, 31
Stat. at L. 141, 160. “[A]ll laws of the Republic of
Hawai‘i which confer exclusive fishing rights upon
any person or persons are hereby repealed, and
all fisheries in the sea waters of the Territory of
Hawai‘i not included in any fish pond or artificial
inclosure shall be free to all citizens of the United
States, subject, however, to vested rights; but no
such vested rights shall be valid after three years
from the taking effect of this Act unless established
as hereinafter provided.” Hawai‘i Organic Act, ch.
6, § 95 (2001) (original version at ch. 339, 31 Stat.
141 (2 Supp. R. S. 1141). See also, United States v.
Kaiser Aetna, 408 F. Supp. 42, 51 (D. Haw. 1976),
aff’d, 584 F.2d 378 (9th Cir. 1978), rev’d, 444 U.S.
164 (1979), specifically exempting fishponds from
the scope of the Hawai‘i Organic Act of 1900.
507 See Haalelea v. Montgomery, 2 Hawaiian R. 62,
66; Kapiolani Estate v. Territory of Hawai‘i, 18
Haw. 460 (1907); state v. Hawaiian Dredging
Co., 48 Haw. 152, 397 P.2d593 (1964); Bishop
v. Mahiko, 35 Haw. 608 (1940); Damon v.
Territory of Hawai‘i, 194 U.S. 154 (1904) at
http://caselaw.lp.findlaw.com/cgibin/ getcase.
pl?court=us&vol=194&invol=154.
508 Ian Hlawati, “Loko I‘a: A legal guide to the
restoration of Native Hawaiian fishponds within
the Western paradigm,” 24 U. Haw. L. Rev. 657
(2002), citing Melody MacKenzie, Native Hawaiian
Rights Handbook (1991), p. 177.
509 Ian Hlawati, “Loko I‘a: A legal guide to the
restoration of Native Hawaiian fishponds within
the Western paradigm,” 24 U. Haw. L. Rev.
657 (2002), citing Melody MacKenzie, ed., The
Native Hawaiian Rights Handbook, p. 177; Alan
Murakami, Konohiki Fishing Rights and Marine
Resources, in Native Hawaiian Rights Handbook,
at 173-95; and “In Smith v. La‘amea the court
stated: ‘We understand the word tenant, as
used in this connection, to have lost its ancient
restricted meaning, and to be almost synonymous
at the present time with the word occupant, or
occupier, and that every person occupying lawfully
any part of an ahupua‘a ‘is a tenant within the
meaning of the law. Those persons who formally
lived as tenants under the konohikis but who
have acquired fee simple title to their kuleanas,
under the operation of the Land Commission,
continue to enjoy the same rights of piscary that
they had as hoaainas under the old system. . . .
If any person who has acquired a kuleana on the
ahupua‘a of Honouliuli should sell and convey his
land, or even a part of it, to another, a common
right of piscary would pass to the grantee, as an
appurtenance to the land.” Smith v. La’amea, 29
Haw. 750, 755-56 (1927) (quoting Haalelea v.
Montgomery, 2 Haw. 62, 71 (1858).
510 Damon v. Territory of Hawai‘i 194 U.S. 154
(1904), referencing Wedding v. Meyler, 192 U.S.
573 , 583, ante, p. 322, 24 Sup. Ct. Rep. 322, at
http://caselaw.lp.findlaw.com/cgibin/ getcase.
pl?court=us&vol=194&invol=154. See also Haalelea
v. Montgomery, 2 Hawaiian R. 62, 66.
511 HRS § 187A-23; Ian Hlawati, “Loko I‘a: A legal
guide to the restoration of Native Hawaiian
fishponds within the Western paradigm,” 24 U.
Haw. L. Rev. 657 (2002), part III, “Analysis: Legal
Guide to Restoration.” “In 1982, the Hawai‘i
Supreme Court recognized in Reppun v. Board
of Water Supply (656 P.2d 57, at 68-69 (1982) that
there had been unjustified losses of customary
Hawaiian rights, including konohiki fishing rights.
Having recognized their own historical errors, the
court held that with regard to water rights, the
grant of such water rights to a konohiki owner
were inseparable from the konhiki’s duty to
provide for his tenants. The court implied that
their holding with regard to water rights had
application to the analogous land and fishing
rights. Reppun represented a marked departure
from what had previously been held in Hawaiian
Dredging. Under Ashford (440 P.2d 76 (1968),
Reppun, and PASH (79 Hawai‘i at 445-46, 903 P.2d
at 1266-67), Hawaiians with or without vested
property interests in fishponds may have judicially
enforceable rights to fish at these sites.”
512 Hawai‘i Constitution, Article XI, Section 6, at http://
www.Hawaii.gov/lrb/con/conart11.html.
513 D. Kapua Sproat, The backlash against PASH:
legislative attempts to restrict Native Hawaiian
rights, 20 U. Haw. L. Rev. 321 (1998), part III, citing
Haw. Const. .art. XII § 7.
514 John Van Dyke, “The role of indigenous peoples in
ocean governance: Traditional native approaches
to ocean governance,” part of the United Nation’s
University’s Integrated Ecosystems, Pacem in
Maribus XIX conference, at http://www.unu.edu/
unupress/unupbooks/uu15oe/uu15oe0a.htm, citing
Opinion letter written by the Department of the
Attorney General, Land Transportation Division,
to the Chair of the Board of Land and Natural
Resources, State of Hawai‘i, 24 June 1982.
515 OHA’s claim to share equally in the harvest may
find support in a 1979 U.S. Supreme Court decision
(443 US 658) upholding the Boldt Decision, the
result of a 1970 federal suit against the state of
Washington that allocated 50 percent of state’s
catch to land-holding native American Indians
under an interpretation of treaties between the
U.S. and the Indian tribes. See Sharon Boswell and
Lorraine McConaghy, “A Resource Divided, Seattle
Times, Nove. 10, 1996, at http://seattletimes.
nwsource.com/centennial/november/resource.
html; also see “Federal Judge George Boldt issues
historic ruling affirming Native American treaty
fishing rights on February 12, 1974,” at http://
www.historylink.org/essays/output.cfm?file_
id=5282.
516 John Van Dyke, “The role of indigenous peoples in
ocean governance: The pursuit of ocean claims,”
United Nation’s University’s Integrated Ecosystems,
Pacem in Maribus XIX conference, at http://
www.unu.edu/unupress/unupbooks/uu15oe/
uu15oe0a.htm: “On 2 September 1989, the Office
of Hawaiian Affairs issued a Draft Blueprint for
Native Hawaiian Entitlements which included
the following paragraph among the claimed
entitlements: Submerged Lands and Offshore
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